FOUR processes in code:
1. Contentious Trial
2. Special Processes
nullity of orders
3. Penal Trial
4. Administrative Process
OBJECT of a trial (c. 1400)
1. prosecute or vindicate rights of physical or juridic persons
2. declare juridic facts
3. impose or declare the penalty for offenses
However… Controversies arising from administrative acts must be
brought before the superior or an administrative tribunal (cc. 1400§2,
Church has exclusive right to judge:
1. Spiritual matters
2. Violations of ecclesiastic laws
3. Questions of sin
INTRODUCTORY PHASE OF TRIAL:
1. Preliminary investigation (1341-53, 1717-31)
2. Presentation of libellus / petition (1501)
3. Constitution of tribunal (1425, 1448,-49)
4. Determination of competence (1505, 1401-16)
5. Appt./acceptance/admission of procurator, advocate (1484)
6. Rejection/acceptance of libellus/petition (1507-12)
7. Citation of respondent (trial begins; 1517)
8. Determination of judicial expenses (1464, 1523, 1571, 1649)
9. Joinder of issues (1513, 1677)
10. Time frame established to present proof (1526)
PHASES TO A TRIAL:
2. INSTRUCTION (Gathering of Evidence)
RIGHT of DEFENSE:
Joinder of the Issue
Publication of Acts
Intervention of Defender
Publication of Sentence
Absolute competence (invalid): only this court has jurisdiction in this
case (c. 1406§2) from prevention, grade, status of person, or quality of
Relative competence (illicit): there are several courts which can have
jurisdiction in a particular case (c. 1407§2) and usually has territorial
Absolute Incompetence: results in irremediable nullity.
Reserved cases: Heads of state; cardinals; bishops (c. 1405)
Secular courts absolutely incompetent to hear ecclesiastical cases
Ordinary tribunals absolutely incompetent to act at
Administrative tribunals (c. 1400§2)
With citation, a relatively incompetent tribunal becomes competent.
The exception of relative incompetence is to be raised before joinder (c.
BASES FOR COMPETENCE IN MARRIAGE CASES (c. 1673):
1. Domicile or Quasi-Domicile of Respondent
2. Place of Marriage.
3. Domicile of Petitioner w/consent of the judicial vicar of the
Respondent who must hear the Respondent. This only possible
when both parties live in the same Episcopal conference (not
Puerto Rico, Guam, Wake Islands, Samoa).
4. Place of Most Proofs w/the consent of the judicial vicar of the
Respondent who must hear the Respondent (N.B. the parties do
not need to be in the same Episcopal conference.
COMPOSITION AND OPERATION OF A COLLEGIATE TRIBUNAL
FOR ADJUDICATING A MARRIAGE CASE (c. 1609):
1. The judicial vicar or adjutant judicial vicar presides over a
collegiate tribunal, unless this isn’t possible. (praeses)
2. Praeses determines the time the tribunal will convene.
3. Each judge submits written conclusions w/reasons in fact and law
(may be sketchy).
4. These will be appended to the acts.
5. Invocation of the Divine Name.
6. Discussion beginning w/in order of precedence, but beginning
w/the ponens. Led by Praeses.
7. Dissenting judge can retract his/her original conclusion; ;or can
insist that his/her opinion be sent to the appellate court in the
event of appeal.
8. Vote: majority will be the decision of the court and the decision
will have the appearance of unanimity.
9. Ponens puts the decision into writing, taking into account the
reasoning of the other judges during the discussion of the case.
10. The other judges must approve the sentence prior to publication.
11. Finished no more than one month from the day of the decision.
EXCEPTION: procedural questions, a claim or complaint that modifies
procedures or contentious suit.
1. Dilatory exception: delay, but do not stop trial.
Major: questions of serious procedural defect which can lead
to nullity of the case (before jinder).
Minor: questions dealing w/a procedural point or issue and has
no effect on ullity
2. Peremptory: questions that will stop the trial immediately, e.g. the
case is already res iudicata (c. 1462).
Who can be a party to a marriage cases? Any person w/capacity.
Promoter of Justice if nullity has become public
(Don’t mention this, but maybe: Interested parties: such as
children whose inheritance may be in jeopardy.
Must also be mentally competent; excludes minors.
Declaration of the parties: any statement made by a principal in a case (c.
Confession: A declaration of a party which is against the interest of the
party; or loosely, any statement about oneself which supports the ground
Judicial: made to a judge / auditor during the judicial process (c. 1536).
Judicial Confession must be evaluated along w/other elements of the
case: person remembers facts well, understand nature of an oath,
Extra-judicial: made to someone other than a judge / auditor or outside
the judicial process. Can be given full probative value (c. 1537).
ELEMENTS TO HELP SUPPORT PROBATIVE VALUE OF A PARTY’S
DECLARATION (c. 1530-34, 1572):
1. Testimony of witnesses to parties credibility.
2. Testimonial letters in support of witness credibility.
3. Impressions by judge recording during interrogation of party.
4. Party’s reputation in the community.
5. Well established motive; letters in support of witness credibility.
6. Impressions by judge recording during interrogation of party.
7. Party’s reputation in the community.
8. Well established motive.
DOCUMENTS ADMISSIBLE IN A TRIAL
Public: those prepared by an official as part of his/her official capacity (c.
1540§§1-2); Fully probative of what they affirm, such as -
Private: those not public (c. 1540§3)
Against author: may have same weight as extra-judicial
Against outsiders: same force as a declaration of the party
Must be originals or authentic copies (signed and notarized, c. 1544).
Who can be witnesses (c. 1547)?
All can be except:
Those under 14 (unless judge decrees otherwise, c. 1550§1)
Those who are mentally debilitated
The parties themselves
Priests bound by sacramental seal & others w/same
knowledge (c. 1550§2)
No obligation to testify
Clerics concerning anything connected w/their ministry.
Those who fear infamy, dangerous vexations or other evil
toward them or another person (c. 1548).
One witness is no witness (c. 1573)
Unless a qualified witness: give full proof (expert).
Circumstances suggest otherwise
JPII: expert must have Christian anthropology; expert cannot determine
Role of EXPERT (c. 1574):
To establish some fact or clarify the true nature of something
Must be used in cases of:
Defect of consent due to mental illness (1095§3)
Dignitatis Conubii extends to all c. 1095 cases
Unless it is obvious that this would be useless (alcoholism)
Publication of the ACTS: Allow the parties and their advocates to see the
acts (or proofs) which are not yet known to them (c. 1598).
Publication of the SENTENCE: Provide a copy of the sentence to the
parties or their procurators (c. 1614-15); sentence sanates undeclared
nullity of acts (c. 1619).
PRESUMPTION: probable conjecture about an uncertain matter;
legal/human presumptions (c. 1584).
e.g. marriage is valid, marital act presumed, imputability presumed.
MORAL CERTITUDE: The EXCLUSION OF ANY WELL-FOUNDED
DOUBT. (lies between absolute certitude and probability). Judge must
reach this before rendering any kind of sentence (c. 1608).
He comes to moral certitude based on the acts and the proofs (c. 1608§2).
If judge cannot reach moral certitude (c. 1608§4):
1. Pronounce that the right of the Petitioner has not been
established; absolve the respondent.
2. Unless it is a question of a case enjoying he favor of the law.
Nullity not proven.
3. Penal cases: constant; non-constant, declaration of innocence
Judge’s DEFINITIVE SENTENCE must contain (c. 1611):
1. Settle the controversy: a response to each & every doubt.
2. Determine obligation of the parties
3. Set out the reasons motivating the decision
4. Apportion court expenses.
External Solemnities (c. 1612):
1. Introduction: invoke divine name; judges; names and domiciles
of parties; name of procurator/Defender of the Bond/Promoter of
2. The facts: w/conclusions of the parties
3. Formulation of the doubt.
4. Expositive Section:
in iure (what is the relevant law to the grounds set).
in facto: applies the law to the proofs.
5. Dispositive Section: constat or non-sonstat
6. Conclusion: date, place, signatures.
REMEDIES against a sentence w/which one disagrees.
Complaint of Nullity: the process was so bad that the sentence should be
thrown out (c. 1619)
Irremediable nullity: it isn’t fixed w/time (c. 1620)
Remediable: the nullity is fixed w/time (3 months c. 1622)
Distinguish between curable & incurable nullity of a sentence.
INCURABLE (IRREMEDIABLE): NOT HEALED W/TIME (c. 1620) such
Rendered by an absolutely incompetent judge
Rendered by one lacking power to judge
Rendered under force/fear
One party lacked standing
Trial w/o libellus or not against some respondent
One person acted on behalf of another w/o mandate
Right of Defense was denied, such as -
Respondent not cited
Grounds not made known to the parties
Respondent not given opportunity to propose witnesses
Acts/Sentence not published
Not given an advocate when asked
Advocate did not represent the party’s best interests.
Sentence did not even partially settle the controversy
Effects: complaint of nullity can be raised as an exception in perpetuity,
and as an action for 10 years from the date of publication.
CURABLE (REMEDIABLE): HEALED W/TIME (c. 1622) such as -
Rendered by illegitimate number of judges
It does not give the reasons or motives
It lacks the required signatures
It lacks reference to date and place of publication
It was rendered against a party who was legitimately absent.
Effects: complaint of nullity can be raised within 3 months of notification
of publication of sentence. After 3 months w/o a complaint, the sentence
Publication of Sentence (c. 1614):
Copy of the sentence given to the parties or their procurators; can be
mailed (c. 1615).
Must also include ways to impugn the sentence: appeal
Appeal: Challenge to the merits of a case. By a party, Defender of the
Bond, or Promoter of Justice (c. 1628).
What does not admit of appeal: res iudicata; decree which must be issued
expeditissime; sentences of the pope or Apostolic Signatura.
Appeal must be filed within 15 days of notification of publication (c. 1615)
and has suspensive effect (c. 1638).
RES IUDICATA: final judgment with second concordat sentence (after
appeal), or no appeal, or abated/renounced at appellate court but nenver
on status of persons (c. 1641-42).
RESTITUTIO IN INTEGRUM: An EXTRAORDINARAY REOPENING of
the case that has become RES IUDICATA (usually of new evidence, false
proofs, new facts, or malice): the SENTENCE’S INJUSTICE IS CLEARLY
MANIFEST (c. 1645).
DOCUMENTARY PROCESS (c. 1686):
When the cause of nullity is:
1. A diriment impediment
2. A defect of form
3. A defect of a valid mandate to act as a proxy
Summary judicial process (single judge: must be a cleric)
Tribunal must be competent on basis of c. 1673
Parties must be cited; Defender of the Bond must intervene (c. 1687)
Second instance review is not mandatory unless there is an appeal (c.
The Right to Defense: the right of each party to (1) be heard and (2) to
know and be able to contradict those things put forth by the opposing
It bears on both the instrumental and intrinsic ends of procedural law.
Instrumental: to guide and structure the search for truth.
Intrinsic: to honor human Christian dignity of persons by
providing them w/an opportunity for meaningful
participation in decisions that profoundly touch their lives.
The citation: To know what action is being taken against him/her
Opportunity to present EVIDENCE:
Publication of the acts. What proofs will the judge base his/her decision.
If right to defense is denied it leads to incurable nullity(c. 1620).
Incidental Questions: a question which often must be resolved before the
principal question (c. 1587).
1. Should the question be admitted.
2. If so, how should it be dealt with (Decree or Sentence)
By decree: can be given to an auditor (c. 1599§3)
By sentence: oral contentious process. (streamlined judicial process)